The Kansas Court of Appeals recently issued an opinion on the responsibility of the University of Kansas to take action under Title IX for off-campus student behavior. The University of Kansas expelled a male student for sexually harassing a female student when he continued sending sexually offensive tweets about her, even though he was under a court order not to do so. The University warned him he could be disciplined for any contact with her after the court order was entered. The University, after a hearing, found the student violated the protection order and sent tweets threatening the physical health, welfare, and safety of the female student in violation of the University sexual harassment policy.
Finding the University Student Code and sexual harassment policy controlled the issues, the Kansas Court of Appeals reversed the University’s order of expulsion and ordered the student reinstated with a tuition credit for the semester in which he was expelled. Yeasin v. University of Kansas, No. 113,098, 9/25/2015. The Court stated the Student Code limited sanctions against students for non-academic conduct to those proscribed in the Code. The sexual harassment prohibition in the Code covered only University programs or activities. The Court thus found the University had no jurisdiction to take action against the student.
The Court specifically rejected the University’s argument that its actions were required under Title IX as set forth in the 2011 “Dear Colleague Letter.” While recognizing the significance of the “Dear Colleague Letter,” the Court noted it does not require a school to take action off-campus. “Instead, the letter clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment. It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning.”
Courts across the country have been faced with lawsuits challenging the application of Title IX, and the “Dear Colleague Letter” specifically, to off-campus student behavior. In such cases, the “Dear Colleague Letter” requires colleges to assess whether the off-campus activities adversely impact the institution’s educational programs. The challenge of making that assessment is even greater in light of the Kansas decision.